175 S.E. 92 | N.C. | 1934
SCHENCK, J., took no part in the consideration or decision of this case. Plaintiff alleged that she was the owner of a 4 1/2 per cent North Carolina bond, payable to bearer, which had been entrusted by her to one Leonore W. Seay for sale, and that the said Seay had wrongfully converted said bond and applied the proceeds thereof to the use and benefit of the defendant. It was further alleged in substance that Leonore W. Seay was the agent of defendant and that they had been engaged in various check kiting transactions in purchases and sales on the stock market. The defendant made a motion in apt time to strike out paragraphs 1, 2, 3, 4, and 5 of the complaint for the reason that they were irrelevant and immaterial, and involved transactions not connected with the cause of action asserted by the plaintiff.
The trial judge overruled the motion to strike out and the defendant appealed.
It is accepted law that facts and transactions which have no vital relation to the cause of action alleged, ought not to be scrambled in a complaint. However, mere scenery and stage decoration contained in a pleading do not warrant the conclusion that such may form the basis for the introduction of incompetent evidence at the trial. It is to be assumed that the trial judge will confine the evidence to the cause of action set up. Consequently it cannot be held, as a matter of law, that the allegations in the present complaint purporting to disclose the course of dealing between the defendant and his agent, Seay, are wholly irrelevant and harmful. SeePemberton v. Greensboro,
Affirmed.
SCHENCK, J., took no part in the consideration or decision of this case.
